Substance Use During Pregnancy

Background

Since the late 1980s, policymakers have debated the question of how society should deal with the problem of women’s substance use during pregnancy. Prosecutors have attempted to rely on a host of criminal laws already on the books to attack prenatal substance use. The Supreme Courts in Alabama and South Carolina have upheld convictions ruling that a woman’s substance use in pregnancy constitutes criminal child abuse. Meanwhile, several states have expanded their civil child-welfare requirements to include prenatal substance use, so that prenatal drug exposure can provide grounds for terminating parental rights because of child abuse or neglect. Further, some states, under the rubric of protecting the fetus, authorize civil commitment (such as forced admission to an inpatient treatment program) of pregnant women who use drugs; these policies sometimes also apply to alcohol use or other behaviors. A number of states require health care professionals to report or test for prenatal drug exposure, which can be used as evidence in child-welfare proceedings. And in order to receive federal child abuse prevention funds, states must require health care providers to notify child protective services when the provider cares for an infant affected by illegal substance use. Finally, a number of states have placed a priority on making drug treatment more readily available to pregnant women, which is bolstered by federal funds that require pregnant women receive priority access to programs.

Highlights

23 states and the District of Columbia consider substance use during pregnancy to be child abuse under civil child-welfare statutes, and 3 consider it grounds for civil commitment.

25 states and the District of Columbia require health care professionals to report suspected prenatal drug use, and 8 states require them to test for prenatal drug exposure if they suspect drug use.

19 states have either created or funded drug treatment programs specifically targeted to pregnant women, and 17 states and the District of Columbia provide pregnant women with priority access to state-funded drug treatment programs.

* The Alabama Supreme Court held that drug use while pregnant is considered chemical endangerment of a child. The South Carolina Supreme Court held that a viable fetus is a "person" under the state's criminal child-endangerment statute and that "maternal acts endangering or likely to endanger the life, comfort, or health of a viable fetus" constitute criminal child abuse.
† Indiana law prohibits a medical provider from releasing information about a pregnant woman's drug or alcohol test without her consent.
‡ Priority applies to pregnant women referred for treatment.
ξ Establishes requirements for health care providers to encourage and facilitate drug counseling.
Ω Missouri child abuse law considers a parent to be unfit if the woman tests positive for substances within 8 hours after delivery and she has previously been convicted of child abuse or neglect or if she failed to complete a drug treatment program recommended by Child Protective Services.
Ө West Virginia substance use providers that accept Medicaid must give pregnant women priority in accessing services.
β Wisconsin provides priority access to pregnant women in both general and private programs.